Unknown. Final rule

9,717 words·~44 min read·/register/2008/04/18/08-1149

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2008-04-18.xml --- 73 76 Friday, April 18, 2008 Contents Agency Agency for Toxic Substances and Disease Registry NOTICES Availability of Two Interaction Profiles, 21135-21136 E8-8167 Agricultural Agricultural Marketing Service RULES Onions Grown in South Texas; Increased Assessment Rate, 21023-21026 08-1149 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Food and Nutrition Service See Forest Service NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 21095 E8-8337 Air Force Air Force Department NOTICES Meetings: US Air Force Academy Board of Visitors, 21120-21121 E8-8372 Animal Animal and Plant Health Inspection Service NOTICES Meetings: National Poultry Improvement Plan; General Conference Committee, 21095-21096 E8-8417 Architectural Architectural and Transportation Barriers Compliance Board PROPOSED RULES Meetings: Emergency Transportable Housing Advisory Committee, 21092 E8-8420 Army Army Department See Engineers Corps NOTICES Availability of the Record of Decision:

Permanent Stationing of the 2/25th Stryker Brigade Combat Team (SBCT), 21121 E8-8296 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Disease Control and Prevention NOTICES Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, E8-8355 21136-21138 E8-8407 E8-8438 Centers Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 21138-21139 E8-8229 Coast Guard Coast Guard RULES Drawbridge Operations: Joliet, IL, 21043 E8-8472 PROPOSED RULES Drawbridge Operations: Potomac River, Oxon Hill, MD and Alexandria, VA, 21090-21092 E8-8514 Commerce Commerce Department See Foreign-Trade Zones Board See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List;

Additions and Deletions, 21106-21107 E8-8366 Procurement List Additions, 21106 E8-8367 Defense Defense Department See Air Force Department See Army Department See Engineers Corps See Navy Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21118-21119 E8-8375 E8-8377 Meetings: Reserve Forces Policy Board, 21119-21120 E8-8382 Nationwide TRICARE Demonstration Project, 21120 E8-8385 Employment Employment and Training Administration NOTICES Amended Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Negative Determination Regarding Eligibility to Apply for Alternative Trade Adjustment Assistance, 21157-21158 E8-8354 Investigation:

Owens Brockway, 21158 E8-7741 Energy Energy Department NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Paducah, 21123 E8-8389 E8-8404 High Energy Physics Advisory Panel, 21124 E8-8428 Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Boston Harbor Deep Draft Navigation Improvement Project, 21121-21122 E8-8202 Carryover Storage and San Vicente Dam Raise Project, San Diego County, CA, 21122 E8-8282 EPA Environmental Protection Agency RULES Thiamethoxam;

Pesticide Tolerances, 21043-21049 E8-8398 NOTICES Environmental statements; availability, etc., E8-8396 21124-21125 E8-8397 Meetings: FIFRA Scientific Advisory Panel, 21125-21128 E8-8399 Science Advisory Board (SAB), 21128-21129 E8-8393 Request for Nominations to Augment Expertise on the Radiation Advisory Committee, 21129-21130 E8-8400 Science Advisory Board Staff Office Request for Nominations of Candidates for Advisory Council on Clean Air Compliance Analysis Clean Air Scientific Advisor, 21130-21132 E8-8401 Equal Equal Employment Opportunity Commission NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, E8-8481 21132-21134 E8-8495 E8-8496 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Lindstrand Balloons Ltd. Models 42A, 56A, 60A, 69A77A, 90A, 105A, 120A, 150A, 180A, 210A, 240A, 260A, and 310A Balloons, 21072-21074 E8-8361 Viking Air Limited Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-3 Airplanes, 21074-21076 E8-8365 NOTICES Intent to not Re-evaluate Aircraft Kits Previously Determined to be eligible for Certification as Amateur-Built Aircraft, 21167-21168 E8-8217 Meetings:

RTCA Special Committee, 21168-21169 E8-8221 Waiver of Aeronautical Land-use Assurance; Aurora Municipal Airport; Sugar Grove, IL, 21169-21170 E8-8219 Federal Emergency Federal Emergency Management Agency RULES Changes in Flood Elevation Determinations, 21049-21054 E8-8332 NOTICES Major Disaster Declaration: Arkansas, 21148-21149 E8-8454 Missouri, 21149 E8-8456 Federal Railroad Federal Railroad Administration PROPOSED RULES Electronically Controlled Pneumatic Brake Systems, 21092-21094 E8-8432 NOTICES Clarification of Solicitation of Applications and Funding Availability for the Capital Assistance to States - Intercity Passenger Rail Service Program, 21170 E8-8424 Federal Reserve Federal Reserve System NOTICES Federal Open Market Committee;

Domestic Policy Directive, 21134 E8-8333 FTC Federal Trade Commission NOTICES Delegation of Authority to Disclose Certain Nonpublic Complaint Information to Domestic Law Enforcement Agencies, 21134-21135 E8-8482 Federal Transit Federal Transit Administration NOTICES Reports and guidance documents; availability, etc.: Proposed Guidance on New and Small Starts Policies and Procedures, 21170-21171 E8-8463 Food Food and Drug Administration RULES Implantation or Injectable Dosage Form New Animal Drugs:

Florfenicol, 21041-21042 E8-8346 Insulin, 21042-21043 E8-8347 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21139-21142 E8-8459 Draft Guidance for Sponsors, Industry, Researchers, Investigators, and Food and Drug Administration Staff: Certifications to Accompany Drug, Biological Product, and Device Applications/Submissions, 21142-21144 E8-8349 Meetings: Dermatologic and Ophthalmic Drugs Advisory Committee, 21144 E8-8351 Pediatric Ethics Subcommittee of the Pediatric Advisory Committee, 21145 E8-8352 Food Food and Nutrition Service NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 21096-21097 E8-8457 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES Foreign-Trade Zone 122 - Application for Subzone: Haliburton Energy Services, Inc. (Barite Grinding and Milling) Corpus Christi, TX; Correction, 21107 E8-8436 Forest Forest Service NOTICES Newspapers Used for Publication of Legal Notices in the Southwest Region, 21097-21098 E8-8223 Revised Proposed Policy for Outfitting and Guiding Land Use Fees in the Alaska Region, 21098-21106 E8-8239 Health Health and Human Services Department See Agency for Toxic Substances and Disease Registry See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See National Institutes of Health NOTICES Interest Rate on Overdue Debts, 21135 E8-8374 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See Transportation Security Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 21147-21148 E8-8476 E8-8505 Indian Indian Affairs Bureau NOTICES Draft Environmental Impact Statements: Ione Band of Miwok Indians’ Proposed 228.04-Acre Fee-to-Trust Land Transfer and Casino Project, Amador County, CA, 21150-21151 E8-8334 Industry Industry and Security Bureau RULES Technical Corrections to the Export Administration Regulations Based Upon a Systematic Review of the CCL, 21035-21041 E8-8302 PROPOSED RULES Conforming Changes to Certain End-User/End-Use Based Controls in the EAR;

Clarification of the Term “Transfer” and Related Terms as Used in the EAR, 21076-21083 E8-8197 Interior Interior Department See Indian Affairs Bureau See Land Management Bureau See Minerals Management Service See Reclamation Bureau See Surface Mining Reclamation and Enforcement Office International International Trade Administration NOTICES Antidumping: Electrolytic Manganese Dioxide from Australia, 21108 E8-8421 Export Trade Certificate of Review, 21108-21110 E8-8520 Manufacturing & Services’ Sustainable Manufacturing Initiative;

Update, 21110-21111 E8-8359 International International Trade Commission NOTICES Termination of the Investigation: Certain Connecting Devices (”Quick Clamps”), et al., 21157 E8-8353 Justice Justice Department PROPOSED RULES DNA-Sample Collection Under the DNA Fingerprint Act (of 2005) and the Adam Walsh Child Protection and Safety Act (of 2006), 21083-21087 E8-8339 Labor Labor Department See Employment and Training Administration See Mine Safety and Health Administration Land Land Management Bureau NOTICES Emergency Closure to Unpermitted Collection of Petrified Wood and Plant Fossils:

Robledo Mountains on Federal Land, Dona Ana County, NM, 21151 E8-8384 Public Land Orders: Partial Revocation of Public Land Order No. 1446; South Dakota, 21151 E8-8409 Transfer of Public Land for the Maybell West Uranium, 21152 E8-8418 Withdrawal of National Forest System Land to Preserve Cave Resources Adjacent to Jewel Cave National Monument; South Dakota, 21151-21152 E8-8410 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 21158-21160 08-1156 Maritime Maritime Administration NOTICES Requested Administrative Waiver of the Coastwise Trade Laws, 21171-21172 E8-8431 Merit Merit Systems Protection Board RULES Final Regulatory Changes Regarding Department of Homeland Security Personnel System, 21019-21023 E8-8092 Minerals Minerals Management Service NOTICES Nominations Received and Proposed Limited Alternative Energy Leases;

Outer Continental Shelf

(OCS)and Initiation of Coordination, etc., 21152-21155 E8-8387 Mine Mine Safety and Health Administration RULES Sealing of Abandoned Areas, 21182-21209 08-1152 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-8415 21160-21162 E8-8465 E8-8466 National Foundation National Foundation on the Arts and the Humanities RULES Technical Amendments to Reflect the New Authorization for a Domestic Indemnity Program, 21054-21057 E8-8224 NOTICES Meetings: Humanities Panel, 21162 E8-8504 National Highway National Highway Traffic Safety Administration NOTICES Petition for Exemption from the Vehicle Theft Prevention Standard: Ford, 21173-21174 E8-8479 General Motors Corp., 21172-21173 E8-8477 NIH National Institutes of Health NOTICES Meetings: National Advisory Council on Aging, 21145-21146 E8-8222 National Institute on Alcohol Abuse and Alcoholism, E8-8338 E8-8340 21146-21147 E8-8341 E8-8344 NOAA National Oceanic and Atmospheric Administration RULES Fisheries Off West Coast States; Inseason Adjustments, 21057-21071 E8-8405 NOTICES Fisheries in the Western Pacific; Marine Conservation Plan for Pacific Insular Areas; Sustainable Fisheries Fund, 21111 08-1150 Marine Mammal Stock Assessment Reports, 21111-21117 E8-8406 National Estuarine Research Reserve System, 21117-21118 E8-8345 Navy Navy Department NOTICES Availability of Finding, 21122-21123 E8-8383 Nuclear Nuclear Regulatory Commission NOTICES Dominion Virginia Power Supplement to Notice of Hearing and Opportunity to Petition for Leave to Intervene on a Combined License for North Anna Unit 3: Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation, 21162-21165 E8-8414 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 21174-21175 E8-8512 Presidential Presidential Documents PROCLAMATIONS *Special observances:* Education and Sharing Day, U.S.A. (Proc. 8238), 21017 08-1157 National Park Week (Proc. 8239), 21211-21214 08-1166 Reclamation Reclamation Bureau NOTICES Meetings: Intent to Prepare an Environmental Impact Statement and Scoping Meetings; South Valley Facilities Expansion Project - Clark County, NV, 21155-21156 E8-8380 Yakima River Basin Conservation Advisory Group, 21156 E8-8236 SEC Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 21165 E8-8517 Self-Regulatory Organizations; Proposed Rule Changes: Rule G-11, on New Issue Syndicate Practices, and Rule G-12, on Uniform Practice, 21166-21167 E8-8348 SBA Small Business Administration NOTICES Disaster Declaration: Arkansas, 21167 E8-8364 State State Department NOTICES Meetings: International Security Advisory Board, 21167 E8-8413 Surface Surface Mining Reclamation and Enforcement Office PROPOSED RULES North Dakota Regulatory Program, 21087-21090 E8-8408 Surface Surface Transportation Board NOTICES Railroad Cost-of-Capital (2006), 21175 E8-8386 Toxic Toxic Substances and Disease Registry Agency See Agency for Toxic Substances and Disease Registry Transportation Transportation Department See Federal Aviation Administration See Federal Railroad Administration See Federal Transit Administration See Maritime Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board RULES Oversales and Denied Boarding Compensation, 21026-21035 08-1145 Transportation Transportation Security Administration NOTICES Transportation Worker Identification Credential: Enrollment Dates for the Ports of Juneau, AK, et al., 21149-21150 E8-8423 Treasury Treasury Department See United States Mint PROPOSED RULES Financial Crimes Enforcement Network: Proposed Rulemaking against the Republic of Nauru; Withdrawal, 21179-21180 E8-8392 NOTICES Financial Crimes Enforcement Network; Finding of the Republic of Nauru as a Primary Money Laundering Concern; Withdrawal, 21178 E8-8390 Meetings: Debt Management Advisory Committee, 21175-21176 E8-8225 U.S. Mint United States Mint NOTICES Meetings: Citizens Coinage Advisory Committee, 21176 E8-8373 Veterans Veterans Affairs Department NOTICES Loan Guaranty: Loan Servicing and Claims Procedures Modifications Segment 2 Effective Date, 21176 E8-8381 Separate Parts In This Issue Part II Treasury Department, E8-8390 21178-21180 E8-8392 Part III Labor Department, Mine Safety and Health Administration, 21182-21209 08-1152 Part IV Executive Office of the President, Presidential Documents, 21211-21214 08-1166 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 76 Friday, April 18, 2008 Rules and Regulations MERIT SYSTEMS PROTECTION BOARD 5 CFR Parts 1201, 1210, and 1215 Final Regulatory Changes Regarding Department of Homeland Security Personnel System AGENCY: Merit Systems Protection Board. ACTION: Final rule. SUMMARY: As the Merit Systems Protection Board (MSPB or “the Board”) explained in its notice of Interim Regulatory Changes Regarding Department of Homeland Security Personnel System, **Federal Register** , 72 FR 56883, October 5, 2007, it is revising its regulations to clarify the procedures applicable to MSPB processing and adjudication of cases arising under the Department of Homeland Security's new human resources management system established pursuant to the Homeland Security Act of 2002. As is discussed below, these revisions to the Board's regulations are necessary to reconcile the Board's regulations and procedures with final regulations published by the Department of Homeland Security

(DHS)and the Office of Personnel Management

(OPM)on February 1, 2005. DATES: This rule is effective on April 18, 2008. FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419;

(202)653-7200; fax:

(202)653-7130; or e-mail: *mspb@mspb.gov* . SUPPLEMENTARY INFORMATION: ( *Regarding Issuance of the Interim Regulatory Changes* ): On November 25, 2002, the President signed into law H.R. 5005, the Homeland Security Act of 2002 (Pub. L. 107-296), which established DHS and authorized the DHS Secretary and OPM Director to jointly establish a new human resources management system within DHS. Pursuant to this grant of authority, on February 20, 2004, DHS and OPM published proposed regulations (69 FR 8030) for this new human resources system. Thereafter, on February 1, 2005, DHS and OPM published final regulations (70 FR 5272) implementing the new DHS personnel system. Afterwards, the National Treasury Employees Union, American Federation of Government Employees, National Federation of Federal Employees, National Association of Agriculture Employees, and Metal Trades Department of the AFL-CIO, which collectively represent approximately 50,000 DHS bargaining unit employees, challenged portions of the regulations governing labor-management relations, adverse actions, and the appeals process. One of the provisions of the DHS regulations that was challenged is 5 CFR 9701.706(k)(6), which changes the standard by which the Board may mitigate penalties imposed by DHS. Pursuant to that provision, an arbitrator, adjudicating official or the Board may not modify such a penalty unless it is so disproportionate to the basis for the action as to be wholly without justification. The U.S. District Court for the District of Columbia enjoined the mitigation provision. *NTEU* v. *Chertoff* , 385 F.Supp.2d 1, 32-33 (D.D.C.), *modification denied by* , 394 F.Supp.2d 137 (D.D.C. 2005). A panel of the U.S. Court of Appeals for the D.C. Circuit reversed on this issue, holding that the question of the mitigation standard's legality was not ripe for judicial review. *NTEU* v. *Chertoff* , 452 F.3d 839, 855 (D.C. Cir. 2006). Therefore, the MSPB's regulations include that mitigation standard. Subparts F and G of the final DHS/OPM regulations concern adverse actions and appeals and will have a significant effect on the way the MSPB processes and adjudicates appeals of adverse actions by DHS employees. In addition to limiting the types of cases that may be appealed to the Board, the final DHS/OPM regulations make many changes in how the Board will process and adjudicate appeals by DHS employees, including: Shortened filing deadlines; Streamlined and limited discovery procedures; New settlement procedures; Limitations on the right to a hearing; Summary judgment and limitation of issues; Time limits within which the Board must issue decisions; Procedures for Board review of a decision of the DHS Mandatory Removal Panel (MRP); and, Changes in certain standards of review. In order to accommodate these substantive and procedural changes with the least possible confusion and delay, the Board determined to publish interim amendments to its regulations. Specifically, these changes involve amendments to 5 CFR parts 1201 and the promulgation of new regulations applicable only to procedures for appeals, petitions for review, and requests for review of MRP decisions brought by DHS employees. These new DHS-specific regulations were published in a revised 5 CFR part 1210. The regulations previously found in 5 CFR part 1210 were moved, redesignated as 5 CFR part 1215, and are otherwise not changed. A brief summary of the changes contained in the interim amendments and the final amendments contained herein is as follows: 1201.3(a)(19) and

(20)are amended and 1201.3(a)(21) is added to reflect the Board's jurisdiction over certain actions taken by DHS (an unrelated housekeeping change is also made to 1201.3(a)(20)); 1201.3(b)(3) is amended to reflect the Board's jurisdiction over certain actions taken by DHS and to make clear that 5 CFR parts 1201, 1208 and 1209 apply to proceedings brought under 5 CFR part 1210, except as otherwise provided therein; 1201.11 is amended to state that the regulations of subpart B of 5 CFR part 1201 apply to appellate proceedings covered by part 1210 unless other specific provisions are made in that part; 1201.14(i) is amended to indicate that the Board's rules applicable to electronic signatures by e-filers apply to any regulation in part 1210 that requires a signature; 1201.21 is renumbered and amended to delete an outdated reference to Appendix 1. A new section (1201.21(b)) addresses notice of appeal rights when DHS issues a decision notice to an employee on a matter that is appealable to the Board. 1201.22(b)(2) is amended to indicate that additional time limits applicable to certain appeals by DHS employees are contained in part 1210. The debt management regulations formerly in part 1210 are moved and redesignated as part 1215. As is discussed in greater detail below, new regulations regarding appeals by DHS employees are added in part 1210. Parts 1211, 1212, 1213, and 1214 are reserved for future agency-specific regulations. The new regulations in part 1210 apply to Board proceedings in appeals of certain DHS adverse actions that are covered under subparts F and G of 5 CFR part 9701. Part 1210 consists of four subparts. Subpart A of part 1210 discusses the scope of part 1210 and the Board's policy with regard to application of part 1210 in a fair and efficient manner (1210.1); addresses MSPB jurisdiction (1210.2); sets forth the applicability of 5 CFR parts 1201, 1208, and 1209 to appeals by DHS employees (1210.3); defines certain words and terms used within part 1210 (1210.4); describes when and how the Board and/or an adjudicating official may revoke, amend or waive the regulations in part 1210 (1210.5); and adds a savings provision indicating that part 1210 does not apply to adverse actions proposed prior to the date of an affected employee's coverage under 5 CFR part 9701, subpart G (1210.6). Subpart B of part 1210 sets forth procedures for appeals of actions taken under 5 CFR Part 9701, Subpart F, including agency responsibilities regarding notice of appeal rights (1210.10); procedures for filing an appeal (1210.11); representation by, and disqualification of, representatives (1210.12); burden and degree of proof and affirmative defenses (1210.13); required disclosure and the scope of discovery (1210.14); discovery procedures (1210.15); intervention by the Director of OPM (1210.16); procedures applicable to settlement (1210.17); case suspension procedures (1210.18); the right to a hearing (1210.19); summary judgment (1210.20); and requirements pertaining to the adjudicating official's initial decision, including completion deadlines and interim relief (1210.21). Subpart C of part 1210 addresses procedures applicable to petitions for review of initial decisions and petitions for reconsideration, including requirements such as who may file and the use of electronic filing (1210.30(a)); time limits applicable to petitions for review, cross petitions for review and responses (1210.30(b)); the proper place for filing petitions for review, cross petitions for review, and responses (1210.30(c)); time limits within which the Board must render its decision (1210.30(d)); the ramifications of the Board's failure to meet such time limits (1210.30(e)); and requirements applicable to an OPM request for reconsideration (1210.31). Subpart D of part 1210 addresses MSPB review of decisions of the Mandatory Removal Panel (MRP), including jurisdiction and procedures and time limits applicable to a request for review (1210.40); the standard of review and time limits applicable to a decision by the Board (1210.41); intervention by the Director of OPM (1210.42); finality of Board decisions and judicial review (1210.43); and requests for reconsideration (1210.44). Availability of Documents You can get an electronic copy of the entire set of amendments to 5 CFR part 1201 and the entirety of 5 CFR part 1210 using the Internet by visiting the Merit System Protection Board's Web page at *http://www.mspb.gov* . In addition, paper copies may be obtained by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify this final rule as the final regulatory changes regarding the Department of Homeland Security Personnel System. *Summary and Analysis of the Comments Received on the Interim Regulatory Changes:* The Board's **Federal Register** notice of interim regulatory changes provided for a comment period of 30 days after date of publication, which ended on Monday, November 5, 2007. The Board received five comments, three from individuals, and the others from the National Treasury Employees Union and the American Federation of Government Employees. As explained below, upon consideration of these comments, the Board is making several amendments to its interim regulatory changes. The comments are summarized and discussed below. *Comment 1:* An employee from the Transportation Security Administration stated a preference for the MSPB's appeals process under 5 CFR Part 1201 to the TSA's Disciplinary Review Board process. The commenter made the following statements: “I know that I would want to have the option of thirty days to appeal an adverse action versus the 20 days proposed. I beg of you to keep in place the current appeal rights for all employees in the Federal system.” *MSPB's Response to Comment 1:* Pursuant to the DHS's regulations, at 5 CFR 9701.702, DHS's appellate procedures supersede those of the MSPB to the extent that there may be inconsistencies between the procedures. The Board had the options of following the DHS regulations or issuing its own conforming regulations. It chose the latter option. In order for the Board's regulations to be conforming, they must provide for an appeal period of 20 days instead of 30 days. *Comment 2:* An employee from the Transportation Security Administration raised concerns about the difficulties in receiving pay raises. *MSPB's Response to Comment 2:* This comment did not address any of the interim regulatory changes in 5 CFR Part 1201 or 1210. *Comment 3:* A DHS employee expressed opposition to the implementation of the DHS personnel management system as a whole. *MSPB's Response to Comment 3:* This comment did not address any of the interim regulatory changes in 5 CFR Part 1201 or 1210. *Comment 4:* The National Treasury Employees Union

(NTEU)commented on 11 provisions in the interim regulatory changes. Most of NTEU's suggestions, if adopted, would result in MSPB regulations that would not be consistent, as required by 5 CFR 9701.702, with Subpart G of Part 9701. However, as explained below, the Board has determined that several of NTEU's suggested revisions would add clarity to the Board's regulations and that those suggestions should be adopted. *MSPB's Response to Comment 4:* The Board's responses to NTEU's 11 suggestions are as follows: *Suggestion 1:* The Board's regulations should not incorporate DHS's initial service period: *MSPB's Response to Suggestion 1:* DHS's regulations, at 5 CFR 9701.603, define “initial service period” as the one- or two-year period employees must serve after selection for a designated DHS position in the competitive service for the purpose of providing an employee the opportunity to demonstrate competencies in a specific occupation. 5 CFR 9701.604(d)(1) provides that the Board would have no jurisdiction over an appeal brought by a nonpreference eligible employee serving an initial service period. MSPB's regulation, at 5 CFR 1210.2(a), states that the Board lacks jurisdiction over those classes of employees excluded under 5 CFR 9701.604(d). However, MSPB's regulations clarify that, as determined by DHS, prior Federal civilian service counts toward completion of the initial service period. To be consistent with DHS's regulations, MSPB's regulations must recognize that a nonpreference eligible employee does not acquire appeal rights until after the initial service period has been fulfilled. *Suggestion 2:* MSPB should revise 5 CFR 1210.10 to require DHS to include in its decision notices to employees information about the availability of an appeal to the Board of an adverse arbitration decision. *MSPB's Response to Suggestion 2:* The Board agrees and will revise 5 CFR 1210.10 accordingly. NTEU correctly noted that other agencies are required, under 5 CFR 1201.21(d)(3), to inform employees in the decision notices as to whether they have the opportunity to request Board review of an arbitration decision. NTEU further noted that Board appeal of an arbitration decision “is clearly available in mixed cases pursuant to 5 CFR 9701.709.” It is the Board's understanding that DHS takes the position that certain provisions of 5 CFR Part 1201, Subpart E, including 5 CFR 1201.154(d), will apply to the Board's processing of mixed case appeals brought under 5 CFR Part 9701. Board review of arbitration decisions is available in mixed cases pursuant to subsection 1201.154(d). *Suggestion 3:* If the Board is going to incorporate the 20-day deadline in DHS's regulations for filing an appeal, the Board should exercise its discretion liberally to permit consideration of the merits of untimely filed appeals upon a showing of good cause. In addition, DHS should have only 10 days, not 15 days, to respond to appeals. *MSPB's Response to Suggestion 3:* Because DHS's regulations do not provide for any exception from the 20-day deadline for filing an appeal, see 5 CFR 9701.706(k)(1) (“All appeals” “will be filed no later than 20 days after the effective date of the action being appealed, or no later than 20 days after the date of service of the Department's decision, whichever is later.”), MSPB's conforming regulations cannot so provide either. As for the suggestion that DHS be given 10 days, instead of 15 days to respond to appeals, the Board declines to adopt it. Because a response entails the filing of a narrative response as well as submission of a record, the Board believes that the 15-day time frame is more reasonable. *Suggestion 4:* MSPB's regulations should authorize administrative judges to act on case suspension requests submitted unilaterally. *MSPB's Response to Suggestion 4:* Because DHS's regulations require that case suspension requests be made jointly, MSPB's conforming regulations cannot provide for authorization of unilaterally submitted case suspension requests. *Suggestion 5:* The MSPB regulations governing discovery should be modified to give DHS employees an additional 30 days following receipt of DHS's initial disclosures to make their initial disclosures. They also should be modified to require that the Board's acknowledgment orders advise parties of their initial disclosure obligations. *MSPB's Response to Suggestion 5:* An amendment to MSPB's regulations which would require DHS to submit initial disclosures within 10 days of the date of the Board's acknowledgment order and would allow appellants to wait until 40 days after the date of the acknowledgment order to file their initial disclosures would make it extremely difficult for the parties to complete discovery, for a hearing to be held and for an initial decision to be made within the 90-day deadline imposed by DHS's regulations. As for the suggested amendment to MSPB's acknowledgment orders, it is inconsistent with current practice for Board regulations to set requirements for acknowledgment orders. Moreover, such an amendment would be unnecessary because acknowledgment orders issued in appeals subject to these regulations will contain notice of initial disclosure requirements. *Suggestion 6:* MSPB's regulations, at 5 CFR 1210.17(b), should be amended to permit either party to invoke the service of a settlement judge. *MSPB's Response to Suggestion 6:* In order to reconcile its regulations with DHS's regulations, at 5 CFR 9701.706(i)(1) and (2), the Board must require that the request for the services of a settlement judge be made by the parties jointly. *Suggestion 7:* The MSPB's regulations should not require administrative judges to resolve appeals through summary judgment when they conclude that no material facts are in dispute, and appellants should have 30 days, instead of 15 days, to file an opposition. *MSPB's Response to Suggestion 7:* In order to reconcile its regulations with DHS's regulations, at 5 CFR 9701.706(k)(5), MSPB's regulations must require an administrative judge to render summary judgment on the law without a hearing when there are no material facts in dispute. The Board declines the suggestion to give appellants 30 days to oppose a summary judgment motion in all instances because the 90-day deadline for issuance of an initial decision may not permit judges to give appellants this much time to file an opposition. Moreover, 15 days is the same amount of time that a complainant with a discrimination complaint has to oppose a summary judgment motion. See 29 CFR 1609.109(g)(2). In addition, it should be noted that the Board's regulations, at 5 CFR1210.20(c), do not provide for a rigid deadline but, instead, state that an opposition to a summary judgment motion “shall be filed within 15 days of service of the motion, or at the time specified by the adjudicating official.” Therefore, where time permits, an administrative judge could give an appellant a longer period than 15 days to file an opposition. The regulations also would permit the judge to provide for a response period shorter than 15 days. Finally, under neither DHS's nor MSPB's regulations are appellants precluded from seeking summary judgment. *Suggestion 8:* The MSPB's regulations, at 5 CFR 1210.19(b), should be amended to require that the administrative judge conduct an in-person hearing whenever material facts are in dispute. *MSPB's Response to Suggestion 8:* The suggestion, stated otherwise, is that whenever the administrative judge holds a hearing on an appeal, it must always be an in-person hearing. However, the Board, in a recent decision, recognized that, for hearings held pursuant to 5 CFR Part 1201, there is no statutory mandate for an unlimited entitlement to an in-person hearing. *Koehler* v. *Dept. of the Air Force,* 99 M.S.P.R. 82, ¶ 6 (2005). Over the years, especially under circumstances where there were issues as to the inconvenience and expense of travel, the Board has given appellants the option of having their hearings conducted telephonically. *Id.* As technology has developed, the Board has offered the option of videoconference hearings so that an appellant at a remote location could avail himself of a hearing without undertaking the expense and inconvenience of having to travel to a designated hearing site. *Id.* at ¶ 8, *citing Siman* v. *Dept. of the Air Force,* 80 M.S.P.R. 306, ¶ 6 (1998). Like the rest of the Federal Government, the Board is facing serious challenges to work harder and faster, and to decide cases more efficiently. *Id.* at ¶ 11. Therefore, the Board cannot ignore the advances in videoconferencing technology, which provide a less costly alternative to affording every appellant an in-person hearing. Under the MSPB's interim regulatory changes, one of the factors that judges must consider in deciding whether to hold a hearing in whole or in part by videoconference or telephone is undue prejudice to the appellant. The Board believes that its regulations strike the right balance between giving appellants the right to appear before an administrative judge and conserving the resources of the parties and the Board. *Suggestion 9:* To the extent that the time-of-filing rules in the MSPB's regulations, at 5 CFR 1210.21(a), apply to all filings with the Board, they should be set forth as a separate regulation in Subpart A of the MSPB's regulations. *MSPB's Response to Suggestion 9:* The time-of-filing rules in 5 CFR 1210.21(a) are intended to apply only to the requirement that initial decisions be issued within 90 days after the date on which the appeal is filed; they do not determine whether an appeal was timely filed with the Board. The Board is amending its interim regulatory changes to make this intent clearer. *Suggestion 10:* The MSPB should refrain from adopting the standard for mitigating penalties in the DHS regulations. *MSPB's Response to Suggestion 10:* In order to reconcile its regulations with DHS's regulations, at 5 CFR 9701.706(k)(6), the MSPB must adopt DHS's standard for the mitigation of penalties. *Suggestion 11:* The MSPB should revoke its regulations on “mandatory removal offenses,” or, in the alternative, clarify its regulations to reflect that a de novo standard of review applies to the review of decisions of the Mandatory Removal Panel that involve issues of discrimination. *MSPB's Response to Suggestion 11:* The MSPB lacks authority to revoke the appeals process for mandatory removal offenses established by DHS. Nor can it issue regulations that expand its jurisdiction over appeals of DHS actions taken for mandatory removal offenses beyond the jurisdiction that the DHS regulations provide. However, the Board will adopt the suggestion that 5 CFR 1210.41(a) be clarified to reflect that a de novo standard of review applies to allegations of discrimination contained in mixed case appeals of MRP decisions. *Comment 5:* The American Federation of Government Employees

(AFGE)objects largely to provisions that must be in the MSPB regulations in order for them to be reconciled with the DHS regulations. The first section of the AFGE comments contains an objection to our issuance of the regulations as interim regulations. The MSPB addressed this concern in a letter to AFGE and will summarize this letter below. The second section of the AFGE comments objects to the regulations because they purportedly bypass the collective bargaining rights of DHS employees. The third and fourth sections of the AFGE comments suggest changes to specific provisions in 5 CFR Parts 1201 and 1210, respectively. Each section of AFGE's comment letter is addressed below. *Part 1.* The MSPB should rescind the interim rule issued on October 5, 2007, because it violates the notice and comment requirements of the Administrative Procedure Act. *MSPB's Response:* As reflected in this notice, the MSPB has taken all comments it received into serious consideration and, as a result, will make several modifications to its interim regulatory changes. It is important to note that the Administrative Procedure Act, at 5 U.S.C. 553(b)(A), provides that its notice and comment requirements do not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” This MSPB interim rule falls within this exception. The U.S. Court of Appeals for the D.C. Circuit clarified this exception in *JEM Broadcasting Co., Inc.* v. *F.C.C,* 22 F.3d 320, 326-27 (D.C. Cir. 1994): “Our oft-cited formulation holds that the ‘critical feature' of the procedural exception ‘is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.' ” (citations omitted). This interim rule is intended merely to conform MSPB practices and procedures to the changes implemented by DHS in a final rule after notice and comment. Therefore, MSPB has not violated any of the requirements of the APA. *Part 2:* MSPB should rescind the interim rule because it bypasses the collective bargaining rights of DHS employee unions and their bargaining unit members. *MSPB's Response:* The Board has been informed that the DHS regulations governing the appeals process will not apply to DHS employees who are covered by a collective bargaining agreement until negotiations between DHS management officials and representatives of the appropriate labor organizations have been concluded. *Part 3:* AFGE's suggestions regarding the interim regulatory changes to 5 CFR. Part 1201: AFGE suggests two modifications. The first suggested modification is to 5 CFR 1201.3(b)(3), which pertains to the Board's jurisdiction over appeals of certain actions taken by DHS. The suggestion is that language be added regarding possible conflicts between Part 1210 and Part 9701 as modified by a collective bargaining agreement. The second suggested modification is that the policy statement in 5 CFR 1201.11 be modified to reflect the concept of fairness as well as expedience. *MSPB's Response:* The Board declines to adopt the first suggestion. At this time, there are no collective bargaining agreements that modify the time limits and procedures in Part 9701. Should that change, the Board will consider revising its regulations at that time. The Board has adopted the second suggestion and modifies 5 CFR 1201.11 accordingly. *Part 4:* AFGE's suggestions regarding the interim regulatory changes to 5 CFR Part 1210: AFGE suggests modifications to seven provisions of 5 CFR Part 1210. As explained below, the Board is adopting the suggestion pertaining to the discovery obligations. *Suggestion 1:* Modify the savings provision in 5 CFR 1210.6 to note that it will be subject to modified time limits and procedures set by 5 CFR Part 9701 or applicable collective bargaining agreements. *MSPB's Response to Suggestion 1:* According to AFGE, this proposed modification “simply acknowledges the possibility that bargaining could result in changed provisions of Part 9701 being applicable to members of bargaining units.” The Board declines to adopt the suggestion. At this time, there are no collective bargaining agreements that modify the time limits and procedures in Part 9701. Should that change, the Board will consider revising its regulations at that time. *Suggestion 2:* Modify 5 CFR 1210.14 to allow for appellants' provision of documents and information that become known to him or her after the close of the initial disclosure period. *MSPB's Response to Suggestion 2:* The purpose of this suggestion seems to be to allow appellants to disclose or identify documents as they become aware of their existence. The Board finds that an effective way to make this modification applicable to both parties is to add to 5 CFR 1210.14(a) the requirement that both parties update their initial disclosures as relevant documents and information are discovered or become available. The Board is modifying 5 CFR 1210.14(a) accordingly. *Suggestion 3:* The discovery procedures, specifically, 5 CFR 1210.15(b)(2), should be modified to allow for discovery beyond the limitations set out in 5 CFR 1210.15(b)(1) “for good cause, and as fairness may require” instead of under a “necessity and good cause” standard. *MSPB's Response to Suggestion 3:* In order to reconcile its regulations with DHS's regulations, at 5 CFR 9701.706(k)(3)(iii), the Board must consider requests for additional discovery under the “necessity and good cause” standard. *Suggestion 4:* The language regarding the right to a hearing set out in 5 CFR 1210.19(b) should be modified to make it clear that, absent summary judgment, a hearing must be held. *MSPB's Response to Suggestion 4:* Read together, subparts

(a)and

(b)of 5 CFR 1210.19 make it clear that, absent summary judgment, there is a right to a hearing but that the form of hearing to be held is within the administrative judge's discretion. *Suggestion 5:* The summary judgment provision, at 5 CFR 1210.20, should be stricken in its entirety or, in the alternative, subsection (d), which provides that an administrative judge may initiate summary judgment sua sponte if he or she determines that material facts may not be in dispute, should be stricken. *MSPB's Response to Suggestion 5:* In order to reconcile its regulations with DHS's regulations, at 5 CFR 9701.706(k)(5), MSPB's regulations must require an administrative judge to render summary judgment on the law without a hearing when there are no material facts in dispute. That is the case whether summary judgment is initiated by a party or by the judge. *Suggestion 6:* The mitigation of penalty standard in 5 CFR 1210.21(b) should be stricken in its entirety. *MSPB's Response to Suggestion 6:* In order to reconcile its regulations with DHS's regulations, at 5 CFR 9701.706(k)(6), MSPB's regulations must contain DHS's standard for mitigation of penalties. *Suggestion 7:* All references to mandatory removal offenses should be stricken from 5 CFR Part 1210. *MSPB's Response to Suggestion 7:* The Board lacks authority to revoke the appeals process for mandatory removal offenses established by DHS. However, as explained above, the Board is adopting the suggestion of NTEU that 5 CFR 1210.41(a) be clarified to reflect that a de novo standard of review applies to allegations of discrimination contained in mixed case appeals of MRP decisions. List of Subjects in 5 CFR Parts 1201, 1210, and 1215 Administrative practice and procedure, Civil rights, Government employees. For reasons set forth in the preamble, the interim rule published October 5, 2007 (72 FR 56883) is adopted as final with the following changes: PART 1201—PRACTICES AND PROCEDURES 1. The authority citation for part 1201 continues to read as follows: Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted. 2. Section 1201.11 is amended by adding a new sentence at the end of the section to read as follows: § 1201.11 Scope and policy. * * * It is the Board's policy that these rules will be applied in a manner that ensures the fair and efficient processing of each case. PART 1210—DEPARTMENT OF HOMELAND SECURITY HUMAN RESOURCES MANAGEMENT SYSTEM 3. The authority citation for part 1210 continues to read as follows: Authority: 5 U.S.C. 1204 and 7701. 4. Section 1210.10(a)(4) is revised to read as follows: § 1210.10 Notice of appeal rights.

(a)* * *

(4)Notice of any right the employee has to file a grievance, including notice that the election of any applicable grievance procedure may result in a waiver of the employee's right to file an appeal with the Board and as to whether there is any right to request Board review of a final decision on a grievance in accordance with § 1201.154(d); and 5. Section 1210.14 is amended by revising paragraphs (a)(1)(ii) and (a)(2)(ii) to read as follows: § 1210.14 Initial disclosures; scope of discovery.

(a)* * *

(1)* * *

(ii)The name, work address and work telephone number, if known, of each individual likely to have discoverable information that the Department may use in support of its claims or defenses, identifying the subjects of such information.

(2)* * *

(ii)The name, address and telephone number, if known, of each individual likely to have discoverable information that the appellant may use in support of his or her claims or defenses, identifying the subjects of the information. Each party must make its initial disclosure based on the information then reasonably available to the party. Each party has an ongoing obligation to supplement and update its initial disclosure as relevant documents and information are discovered or become available. A party is not excused from making its disclosures because it has not fully completed the investigation of its case, because it challenges the sufficiency of the other party's disclosures or because the other party has not made its disclosures. 6. Section 1210.21 is amended by adding a new sentence to the end of paragraph

(a)to read as follows: § 1210.21 Initial decision by the adjudicating official.

(a)*General* . * * * For purposes of this subsection only, a document that is filed with a Board office by personal delivery is considered filed on the date on which the Board office receives it. 7. Section 1210.41is amended by adding a sentence to paragraph (a)(3) to read as follows: § 1210.41 Decision of the Board.

(a)* * *

(3)* * * The Board will apply a de novo standard of review to allegations of discrimination contained in mandatory removal appeal actions. Dated: April 10, 2008. William D. Spencer, Clerk of the Board. [FR Doc. E8-8092 Filed 4-17-08; 8:45 am] BILLING CODE 7400-01-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 959 [Docket No. AMS-FV-07-0151; FV08-959-1 FR] Onions Grown in South Texas; Increased Assessment Rate AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: This rule increases the assessment rate established for the South Texas Onion Committee (Committee) for the 2007-08 and subsequent fiscal periods from $0.02 to $0.03 per 50-pound equivalent of onions handled. The Committee locally administers the marketing order which regulates the handling of onions grown in South Texas. Assessments upon onion handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins August 1 and ends July 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated. DATES: *Effective Date:* April 21, 2008. FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Regional Manager, Texas Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:

(956)682-2833, Fax:

(956)682-5942, or E-mail: *Belinda.Garza@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:

(202)720-2491, Fax:

(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order No. 959, as amended (7 CFR part 959), regulating the handling of onions grown in South Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture

(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, South Texas onion handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable onions beginning on August 1, 2007, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule increases the assessment rate established for the Committee for the 2007-08 and subsequent fiscal periods from $0.02 to $0.03 per 50-pound equivalent of onions handled. The South Texas onion marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of South Texas onions. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. For the 2004-05 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA. The Committee met on November 16, 2007, and unanimously recommended 2007-08 expenditures of $202,315 and an assessment rate of $0.03 per 50-pound equivalent of onions. In comparison, last year's budgeted expenditures were $193,315. The assessment rate of $0.03 is $0.01 higher than the rate currently in effect. The Committee recommended the increased rate to continue to support the increased budget for research started last season, while reducing the amount of funds drawn from the Committee's authorized reserve. Without the increase, the Committee's reserve funds would drop to $114,728. The Committee believes a reserve that low is not adequate for its operations. The major expenditures recommended by the Committee for the 2007-08 fiscal period include $64,315 for personnel and office expenses, $45,000 for compliance, $25,000 for promotion, and $30,000 for research. Budgeted expenses for these items in 2006-07 were $62,315, $43,000, $25,000, and $25,000, respectively. The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of South Texas onions. Onion shipments for the fiscal period are estimated at 5,775,000 fifty-pound equivalents, which should provide $173,250 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses. Funds in the reserve (currently $196,543) will be kept within the maximum permitted by the order (approximately two fiscal periods' expenses, § 959.43). The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information. Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2007-08 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA), the Agricultural Marketing Service

(AMS)has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 118 producers of onions in the production area and approximately 34 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration

(SBA)(13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000. Most of the handlers are vertically integrated corporations involved in producing, shipping, and marketing onions. For the 2006-07 marketing year, the industry's 34 handlers shipped onions produced on 12,460 acres with the average and median volume handled being 179,457 and 171,537 fifty-pound equivalents, respectively. In terms of production value, total revenues for the 34 handlers were estimated to be $86.7 million, with average and median revenues being $2.55 million and $2.35 million, respectively. The South Texas onion industry is characterized by producers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of onions. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the onion production season is complete. For this reason, typical onion producers and handlers either produce multiple crops or alternate crops within a single year. Based on the SBA's definition of small entities, the Committee estimates that 32 of the 34 (94 percent) handlers regulated by the order would be considered small entities if only their spring onion revenues are considered. However, revenues from other productive enterprises would likely push a large number of these handlers above the $6,500,000 annual receipt threshold. All of the 118 producers may be classified as small entities based on the SBA definition if only their revenue from spring onions is considered. When revenues from all sources are considered, a majority of the producers would not be considered small entities because receipts would exceed $750,000. This rule increases the assessment rate established for the Committee and collected from handlers for the 2007-08 and subsequent fiscal periods from $0.02 to $0.03 per 50-pound equivalent. The Committee unanimously recommended 2007-08 expenditures of $202,315 and an assessment rate of $0.03 per 50-pound equivalent. The assessment rate of $0.03 is $0.01 higher than the current rate. The quantity of assessable onions for the 2007-08 fiscal period is estimated at 5,775,000 fifty-pound equivalents. Thus, the $0.03 rate should provide $173,250 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, will be more than adequate to cover budgeted expenses. The major expenditures recommended by the Committee for the 2007-08 fiscal period include $64,315 for personnel and office expenses, $45,000 for compliance, $25,000 for promotion, and $30,000 for research. Budgeted expenses for these items in 2006-07 were $62,315, $43,000, $25,000, and $25,000, respectively. The Committee recommended the increased rate to continue funding a research project begun last year without having to draw a large amount from reserves. Without the increase, the Committee's reserve funds would drop to $114,728. The Committee believes a reserve that low is not adequate for its operations. The Committee reviewed and unanimously recommended 2007-08 expenditures of $202,315, which included increases in the management fee, compliance, and research. Numerous alternative expenditure levels were discussed based upon the relative value of the research project to the onion industry. The assessment rate of $0.03 per 50-pound equivalent of assessable onions was then determined by dividing the total recommended budget by the quantity of assessable onions, estimated at 5,775,000 fifty-pound equivalents for the 2007-08 fiscal period. The assessment rate should generate $173,250 in income. Considering income from interest and assessments, total income will be approximately $24,065 below the anticipated expenses, which the Committee determined to be acceptable. A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 2007-08 fiscal period could range between $10.00 and $28.00 per 50-pound equivalent of onions. Therefore, the estimated assessment revenue for the 2007-08 fiscal period as a percentage of total grower revenue could range between .11 and .30 percent. This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the South Texas onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the November 16, 2007, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. This rule imposes no additional reporting or recordkeeping requirements on either small or large South Texas onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. A proposed rule concerning this action was published in the **Federal Register** on February 29, 2008 (73 FR 11060). Committee staff mailed copies of the proposed rule to all South Texas onion handlers and producers. In addition, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 15-day comment period ending March 17, 2008, was provided for interested persons to respond to the proposal. Two comments were received. One supported the proposed increase and one opposed the proposal. The commenter in support of the assessment rate increase stated that the proposed increase is very modest in light of constantly increasing costs. The commenter noted that planted South Texas onion acreage remains volatile, but has shown an overall decline, which further impacts on the Committee's revenues. The commenter opposing the increase did not state the reason why he was not in favor of the increase, only that it should remain the same. However, we believe that the assessment increase, as recommended by the Committee, is reasonable and necessary. Accordingly, no changes will be made to the rule as proposed. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** because the 2007-08 fiscal period began on August 1, 2007, and the marketing order requires that the rate of assessment for each fiscal period apply to all onions handled during such fiscal period. In addition, the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis. Further, handlers are aware of this action which was unanimously recommended at a public meeting and is similar to other assessment rate actions issued in past fiscal periods. Also, a 15-day comment period was provided for in the proposed rule. List of Subjects in 7 CFR Part 959 Marketing agreements, Onions, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 959 is amended as follows: PART 959—ONIONS GROWN IN SOUTH TEXAS 1. The authority citation for 7 CFR part 959 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 959.237 is revised to read as follows: § 959.237 Assessment rate. On and after August 1, 2007, an assessment rate of $0.03 per 50-pound equivalent is established for South Texas onions. Dated: April 15, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. 08-1149 Filed 4-15-08; 12:13 pm]

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